Have you been monitoring your internet traffic and noted a drop-off in the last few months? Worse still, have you not been able to explain this drop off? Your SEO strategies seem sound, your product is still a market leader, and market conditions are such that you expected traffic to increase. The answer may be a low-key amendment which Google recently made to their Adwords policy.
Previously, Australian trade mark owners were able to use complaint procedures managed by Google if another party used their registered trade mark in an Adwords campaign. For example, if Coca-Cola purchased PEPSI as an Adwords keyword, then Pepsico could complain to Google to stop the practice. This was a relatively simple process, which assisted trade mark owners.
From 23 April 2013 Google amended its policies to no longer restrict the purchase of keywords to generate Adwords. Any party is now free – as far as Google’s policies are concerned – to purchase any keyword as part of an Adwords campaign. This is so, regardless of whether or not the keyword purchased is a registered Australian trade mark of a competitor. That is, under the new Google policies there are no longer restrictions on, for example, Coca- Cola purchasing the trade mark PEPSI in an Adwords campaign on behalf of Coke, and vice versa.
So if your business relies on internet traffic generated from search engines, and in particular from Google, then these changes may be particularly relevant to you. If your internet traffic does fall then it may be worthwhile to investigate whether your competitors are purchasing your trade marks for their Adwords campaigns. Of course, for good competitor intelligence it may be valuable to monitor what your key competitors are doing in this regard even if your website hits are not affected.
While Google is no longer concerned with one party using another’s trade mark in Adwords campaigns, depending on the circumstances and actual use, action may still be available under Australian Consumer Law or the Australian Trade Mark Act. It is also worth noting that the recent changes do not apply to the use of trade marks in the promotional text displayed with the sponsored link. Businesses faced with these issues should consult with their advisers for possible options.